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State v. Hubbard

Superior Court of Delaware

January 25, 2017

STATE OF DELAWARE
v.
ANEL HUBBARD Defendant.

          Submitted: October 17, 2016

         Upon Defendant's Motion for Postconviction Relief, DENIED.

         Upon Conflict Counsel's Motion for Evidentiary Hearing, DENIED.

          Diana A. Dunn, Deputy Attorney General, Department of Justice, Attorney for the State

          Christopher S. Koyste, Esquire, Law Office of Christopher S. Koyste LLC, for the Defendant

          OPINION

          BRADY, J.

          I. Introduction & Procedural History

         Before the Court is a Motion for Postconviction Relief filed pursuant to Superior Court Criminal Rule 61 ("Rule 61") by Anel Hubbard ("Defendant") on October 17, 2011.

         On July 20, 2009, the Defendant was indicted on one count of Attempted Murder in the First Degree, five counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), two counts of Robbery in the First Degree, one count of Carjacking in the First Degree, one count of Reckless Endangering in the First Degree, one count of Conspiracy in the Second Degree, and one count of Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP").[1] A jury trial was held on January 21, 2010 through January 28, 2010 on all charges except the PDWBPP charge, which was severed and heard simultaneously as a bench trial.[2] The jury found the Defendant guilty on all charges and the Court found the Defendant guilty of PDWBPP.[3] On February 26, 2010, the State filed a Motion to Declare Defendant an Habitual Offender, [4] which was granted on April 23, 2010.[5] The Defendant was sentenced to twelve life terms of incarceration without the possibility of probation or parole.[6]

         On May 5, 2011 the Delaware Supreme Court affirmed the judgment of the Superior Court. On October 17, 2011 the Defendant filed a pro se motion for postconviction relief and a memorandum of law in support of his motion. On October 25, 2011 the Defendant moved for leave to amend his Motion, which was granted by the Court. An amended pro se motion for postconviction relief and memorandum of law in support were then filed on November 16, 2011.

          On March 5, 2012 the Defendant filed a motion for appointment of counsel. The Motion was assigned to a Commissioner, who reviewed the Motion and filed a Report on May 16, 2012 which recommended that the Defendant's Motion be denied. On March 20, 2012 the United States Supreme Court decided Martinez v. Ryan, [7] which addressed defendants' rights to assistance of counsel in first postconviction motions.

         The findings of the Commissioner were not adopted by the Court. Rather, on May 24, 2012 the Court ordered the Office of Conflict Counsel to appoint an attorney to represent the Defendant in his postconviction proceedings. On June 28, 2012 Christopher Tease, Esquire was appointed to represent the Defendant. Mr. Tease filed an amended motion for postconviction relief on September 30, 2012.[8] Mr. Tease subsequently became an inactive member of the bar, and the case was re-assigned to present counsel, Christopher Koyste, Esquire on December 4, 2014. The Court requested that he review the file and make any amended or additional claims as necessary.

         On June 5, 2015 Mr. Koyste filed the present Amended Motion for Postconviction Relief and Request for Evidentiary Hearing. The Court, acknowledging Mr. Tease's inactive status, and Mr. Koyste's Amended Motion, entered a new scheduling order allowing the State and the Defendant additional time to respond to the claims raised in the Amended Motion. On November 6, 2015 the State filed its response to the Defendant's Amended Motion. On December 7, 2015 the Defendant filed his reply. On March 14, 2016, after reviewing the Amended Motion and responses, the Court requested that Trial and Appellate Counsel, Patrick

          Collins, Esquire, file a new affidavit addressing the claims of ineffectiveness against him. Mr. Collins filed his affidavit on May 3, 2016.

         On August 30, 2016 an office conference was held. The defense withdrew their request for an evidentiary hearing in relation to the § 3507 claim raised in the Motion for Postconviction Relief. In addition, the Court requested that the defense identify specific information which he expected would be elicited in an evidentiary hearing to determine: (1) if the Defendant was prejudiced by trial counsel's failure to request a Bland instruction; (2) the reasons for the State acquiring the Defendant's prison phone calls; (3) and whether the identification of the Defendant by Isaiah Taylor should have been suppressed. The Defendant filed his supplement in response to questions asked during the conference on September 23, 2016. The State filed its response to the Defendant's supplement on October 17, 2016. The Court then took the matter under advisement. This is the Court's decision.

         II. Facts[9]

         Defendant was arrested by City of Wilmington police officers in connection with a shooting that occurred on West 5th Street. On June 25, 2009 John Walker ("Walker") and Waldemar Ortiz ("Ortiz") left Ortiz's residence located on 5th Street in Wilmington, Delaware, and walked toward the driveway where Walker's motorcycle was parked. As Walker was getting on his motorcycle, two black males approached him. One of the men ordered Walker to get off the motorcycle while the other man pointed a handgun at both Walker and Ortiz. The individual with the handgun ordered Walker and Ortiz to lay face down on the ground. The unarmed man was unable to start the motorcycle and ordered Walker to get up and explain how to start it. As the unarmed man began to drive away on the motorcycle, the gunman started shooting at Ortiz and Walker. Walker was shot once in the jaw, twice in the thigh, and once in the calf. Ortiz was able to escape uninjured. The gunman then fled the scene. Ortiz returned to the scene and drove Walker to Saint Francis Hospital.

         Wilmington police arrived at the scene of the shooting and observed surveillance cameras at the Latin American Community Center, which was adjacent to the scene of the shooting. The surveillance cameras depicted Walker and Ortiz being approached by two black males, one who appeared to have a gun in his hand. The surveillance cameras however did not depict the shooting itself.

         After viewing the surveillance cameras officers went to Saint Francis Hospital and interviewed Ortiz who gave a description of the perpetrators. Police then located the stolen motorcycle at a WaWa on North DuPont Highway in New Castle, Delaware. An individual was sitting on the motorcycle that matched Ortiz's description and who was later identified as Isaiah Taylor ("Taylor"). Taylor was taken into custody.

         On June 25, 2009, Ortiz was interviewed by Detective Peter Leccia ("Detective Leccia") at the Wilmington Police Department. Ortiz was shown a photographic lineup and positively identified Taylor as the man who rode away on the motorcycle. Ortiz was unable to identify the gunman from the photographic lineup. On June 25, 2009 Police officers attempted to interview Walker who was unable to speak due to his injuries. Walker however, positively identified Taylor from a photographic lineup as the individual who stole the motorcycle, but was unable to identify the gunman.

         Taylor was apprehended and interviewed by Detective Leccia. Taylor admitted that he and another man, who was later identified as Defendant, stole the motorcycle. According to Taylor, Defendant began firing shots as Taylor drove away. Based on Taylor's statement, a search warrant was issued for Defendant's home. Defendant was taken into custody as he was leaving the residence. A handgun was recovered from the ceiling tiles in the room Defendant was residing, which was later examined by forensic firearms examiners who were unable to conclusively establish that the five shell casings recovered from the scene were fired from the handgun. The forensic examiners determined that a bullet that was found at the scene of the crime had been fired from the handgun retrieved from Defendant's residence.

         On June 25, 2009, Defendant was brought to the Wilmington Police Department where he was interviewed by Detective Leccia. Defendant was advised of his Miranda rights and stated that he understood them. Defendant waived his Miranda rights and answered Detective Leccia's questions. The Defendant initially denied being present at the crime, but eventually admitted that he was at the scene of the crime, and advised that he had given the gun to Taylor, and that Taylor had shot the victim and given the gun back to the Defendant.

         III. Parties' Contentions Defendant's Contentions

         The Defendant's first claim is that the State failed to establish the proper foundation to properly admit a prior statement made by a testifying witness, Isaiah Taylor under 11 Del. C. § 3507, and that trial counsel was ineffective for failing to object to the admission of the statement. Specifically, the Defendant contends that the State failed to address whether the prior statement made by Taylor during his interview with police was truthful.

         Next, the Defendant contends that trial counsel was ineffective for failing to request that the Court provide the jury with a Bland instruction regarding to the testimony of Isaiah Taylor, who was an accomplice of the Defendant.

         The Defendant also contends that trial counsel was ineffective for failing to move to suppress the Defendant's prison phone calls, which were obtained with a blanket Attorney General's subpoena, admitted without objection, and which tended to establish consciousness of guilt of the Defendant. The Defendant contends that, before the Defendant's trial took place, the Delaware Supreme Court recognized that recording prisoner's phone calls was not proper unless the two-pronged test as recounted in Procunier v. Martinez was met.

         The Defendant contends that trial counsel was ineffective for failing to challenge the identification of the Defendant by his accomplice, Isaiah Taylor. The Defendant argues that because, when police showed Taylor a photograph of another individual, Sean Hubbard, Taylor identified Sean as the shooter, his subsequent identification of the Defendant as the shooter should have been inadmissible. The Defendant also contends trial counsel should have sought to exclude the in-court identification of the Defendant by Taylor.

         The Defendant contends that the cumulative due process errors denied the Defendant his right to a fair trial. The Defendant contends that it is necessary to have an evidentiary hearing, discussed, infra, whereby additional evidence can be gathered to augment the record in relation to the ineffectiveness of counsel.

         Trial Counsel's Contentions[10]

         Trial counsel concedes that the Defendant is correct in stating that the truthfulness of the statement is part of the required foundation for § 3507. However, as a matter of trial strategy, trial counsel did not insist on this aspect of the foundation for several reasons: (1) trial counsel knew that he was going to attack Taylor on a rigorous cross examination, particularly about the deal which he struck with police in exchange for his testimony. Because trial counsel planned to directly attack Taylor's credibility, he saw no reason to demand that the State ask Taylor whether he was telling the truth in his § 3507 statement; (2) Taylor was not a turncoat witness who refused to testify or recanted his § 3507 statement, rather he was testifying consistent with his prior statement. Trial counsel did not want to impede the State in admitting the tape of Taylor's statement because trial counsel felt it contained ample ground for cross examination, including the fact that Taylor identified someone other than the Defendant; and (3) trial counsel is confident that had he objected to the admission of the statement, the Court would have allowed the State to remedy the problem by asking the truthfulness question.

         Trial counsel concedes that he was ineffective in failing to request that the jury be specifically given a Bland instruction on accomplice testimony. Trial counsel notes that a form of the accomplice testimony instruction was read to the jury, which was found in the Superior Court Criminal Pattern Jury Instructions. Trial counsel contends that Smith v. State[11] holds that the preferable practice is to use the original Bland language, and that even though Brooks v. State[12] was decided after the Defendant's trial, trial counsel felt he was ineffective for failing to request a Bland instruction in this case.

         Trial counsel cites the following three reasons for not filing a motion to suppress the in-court and out-of-court identifications of the Defendant by Taylor: (1) trial counsel did not feel that he had a good faith basis to file a motion to suppress because it was obvious from the record that the Defendant and Taylor knew each other; (2) trial counsel filed motions to suppress based on suggestive identifications in the past, and has lost every one, and counsel did not want to provide a preview of his cross-examination of Taylor to the State; and (3) Taylor misidentified the Defendant in his initial identification, and trial counsel felt that was a "ripe"[13] area for cross examination.

         State's Contentions

         Procedurally, the State contends that three of Defendant's claims, those relating to the § 3507 statement by Taylor, the Defendant's prison phone calls, and the identification of the Defendant by Taylor, are barred by Rule 61(i)(3) because the claims were not asserted in the proceedings leading to the judgment of conviction. Additionally, the State contends that an evidentiary hearing is unnecessary because the Court has all of the information which it needs to decide the Defendant's motion.

         As to Defendant's claim that trial counsel was ineffective for failing to object to the admission of Taylor's § 3507 statement, the State argues that the Defendant failed to demonstrate that trial counsel's performance fell below objective standards.[14] The State contends that it was reasonable trial strategy for trial counsel to cross-examine Taylor on the truthfulness of his statement, which trial counsel indicates in his affidavit.[15] Further, even if trial counsel could be arguably ineffective because he did not object to the admission of the statement, the State contends the Defendant cannot prove that he was prejudiced by such action. The State contends that if counsel had objected for the failure to lay a proper foundation, all the prosecutor needed to do was ask Taylor whether his statement was truthful, and foundation for admission of the statement would have been shown.

         As to the Defendant's claim that trial counsel was ineffective for failing to request a Bland instruction, the State and trial counsel concede that it was ineffective for counsel to fail to request an accomplice instruction. However, the State contends the Defendant was not prejudiced because the Court provided the jury with its form accomplice testimony instruction sua sponte, which was proper under the law at the time. Furthermore, at the time of the Defendant's trial, the case which mandated a Bland instruction when accomplice testimony was in evidence, Brooks v. Stated[16] was not yet decided.

         As to the Defendant's claim that trial counsel was ineffective for failing to suppress the Defendant's prison phone calls, the State contends that trial counsel was not ineffective because both cases, State v. Curtis, [17] and State v. Johnson II, [18] which trial counsel might have relied on for this argument, were decided after the Defendant's trial occurred. The State argues that trial counsel could not be ineffective for failing to move to suppress the calls.

         As to the Defendant's claim that trial counsel was ineffective for failing to move to suppress the identification of the Defendant by Taylor, the State contends that trial counsel provided three strategic reasons as to why he did not move to suppress the identifications.[19]Because the decision was strategic, the State contends that the Defendant cannot show that trial counsel was ineffective. Further, the Defendant fails to establish that, but for trial counsel's error, the proceedings against him would have turned out differently.

         Lastly, the State argues the evidence of guilt was overwhelming and contends that the Defendant fails to demonstrate that the alleged due process errors were cumulative or that he was prejudiced, in any way, by trial counsel's conduct.

         IV. Procedural Bars

         Before addressing the merits of Defendant's claims, the Court must determine whether the procedural bars set forth in Superior Court Criminal Rule 61(i)[20] apply to the Defendant's Motion. The version of the Rule in effect at the time that Defendant's pro se motion for postconviction relief was filed, [21] requires the Court to reject a motion for postconviction relief if it is procedurally barred. That Rule provides that a motion is procedurally barred if the motion is untimely, repetitive, a procedural default exists, or the claim has been formerly adjudicated.[22] Rule 61(i)(1) provides that a motion for postconviction relief is time barred when it is filed more than one year after the conviction has become final or one year after a retroactively applied right has been newly recognized by the United States Supreme Court or by the Delaware Supreme Court.[23] Rule 61(i)(2) provides that a motion is waived if the defendant has already filed a Motion for Postconviction Relief and a claim is repetitive if the defendant has failed to raise it during a prior postconviction proceeding, unless "consideration of the claim is warranted in the interest of justice."[24] Rule 61(i)(3) bars consideration of any claim "not asserted in the proceedings leading to the conviction" unless the petitioner can show "cause for relief from the procedural default" and "prejudice from violation of the movant's rights."[25] Rule 61(i)(4) provides that any claim that has been adjudicated "in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceedings" is barred "unless reconsideration of the claim is warranted in the interest of justice."[26]

         Rule 61(i)(5) provides that the procedural bars can be overcome if Defendant makes out a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."[27]

         Defendant's Motion was timely filed. However, some of Defendant's claims of ineffectiveness are truly collateral attacks on the evidence which was used to convict him, and should or could have been raised on appeal. Defendant's claims that suppression was warranted relating to: (1) the § 3507 statement of Taylor; (2) his seized prison phone calls; and (3) the identification of the Defendant by Taylor, are claims which could have been raised at the appellate stage. Defendant's three claims referenced above are barred because they were "not asserted in the proceedings leading to the conviction."[28] The Court will not apply an exception to this procedural bar unless the petitioner can show "cause for relief from the procedural default" and "prejudice from violation of the movant's rights."[29]

         In order for the Defendant's claims to be excepted under Rule 61(i)(3), the Defendant must have demonstrated "cause" and "prejudice." A defendant must prove that his attorney was ineffective in order to constitute "cause" for a procedural default even when that default occurs on appeal rather than at trial.[30] As will be discussed below, trial counsel, who also served as the Defendant's appellate counsel, was not ineffective. The Defendant cannot establish the "cause" necessary to be excepted from his procedural default.

         The Defendant's claims of "prejudice" are not supported by sufficient and specific evidence. Trial counsel provided sound strategic reasons for not raising such arguments.[31]Therefore, the Court finds that the Defendant's claims as referenced above are barred pursuant to the provisions of Rule 61(i)(3).

         V. Request for Evidentiary Hearing

         As a result of the August 30, 2016 office conference, the defense withdrew their request for an evidentiary hearing in relation to the § 3507 claim raised in the Motion for Postconviction Relief. In addition, the Court requested that the defense identify specific information which he expected would be elicited in an evidentiary hearing to determine: (1) if the Defendant was prejudiced by trial counsel's failure to request a Bland instruction; (2) the reasons for the State acquiring the Defendant's prison phone calls; (3) and whether the identification of the Defendant by Isaiah Taylor should have been suppressed.

         In the Defendant's supplemental briefing, he identified the reasons why he thinks an evidentiary hearing is necessary. As to trial counsel's conduct, the Defendant contends that additional testimony from trial counsel to clarify his reasons for failing to request a Bland instruction, [32] failing to move to suppress the prison phone calls, and for failing to move to exclude the identifications of the Defendant by Taylor. In relation to the Bland claim, the Defendant contends that he would present defense witnesses to testify that the prevailing norm of defense counsel strategy is to request a Bland instruction in any multi-defendant case. As to the prison phone calls, the Defendant contends that Procunier v. Martinez was controlling law at the time of the Defendant's trial as to how the State could properly seize prisoner's outgoing phone calls. The Defendant argues that the State should be required to submit its reasons for acquiring the Defendant's prison phone calls on the record so that the Court could determine if the reasons were sufficient. As to the identification claim, the Defendant contends that the conduct of the Wilmington Police Department must be made a part of the record in order to determine if the identification process was suggestive. The Defendant would also seek to admit the Wilmington Police Department's training manual, which the Defendant contends would help to establish the inadequate training of officers as to identification protocols and support a conclusion that suggestive techniques must have been used for Taylor to identify the Defendant.

         Rule 61 provides, in pertinent part, that, "[a]fter considering the motion for postconviction relief, the state's response, the movant's reply, if any, the record of prior proceedings in the case, and any added materials, the judge shall determine whether an evidentiary hearing is desirable.[33] If, however, it appears that an evidentiary hearing is not desirable, the judge shall make such disposition of the motion as justice dictates.[34]

         First, the Court is satisfied that trial counsel has provided the Court with sufficient evidence of his conduct and decisions leading up to, and at trial, as evidenced by three affidavits, which were submitted throughout this postconviction proceeding. Trial counsel has explained his ...


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